I concur in the judgment affirming defendant’s conviction of first degree murder with special circumstances, and of second degree murder (two counts).
I respectfully dissent, however, to reversal of the penalty of death on the ground of trial counsel’s incompetence in failing to offer mitigating evidence at the penalty phase. Although the majority fails to specify what evidence was available, apparently it faults counsel for failing to explore the “good things” in defendant’s life. (Ante, p. 361.) In my view, counsel’s prolonged consideration of the matter, resulting in his ultimate determination, expressed on the record, to respect his client’s firm resolve to face his punishment without groveling for mercy, and without undergoing an awkward parade of defendant’s friends and relatives at the penalty trial, cannot be deemed unreasonable or incompetent representation. The majority’s contrary rule, requiring counsel to overrule his client and attempt to dredge up mitigating testimony despite the consequent loss of his client’s dignity, and the probable serious invasion of his privacy, approaches an unconstitutional infringement of defendant’s due process, privacy and self-representation rights.
The record reflects that defendant, experiencing considerable remorse for his heinous misdeeds, sought to expedite the trial without undue delay and embarrassment for himself and his family, not to mention the victims’ own family. Trial counsel first permitted his client to make a brief statement to the court which acknowledged that what he did was “wrong” and that “I feel I should die for the crimes I done.” Next, counsel explained at length the reasons which induced him to agree to entry of a guilty plea, to waive a jury trial, and to decline to offer any further mitigating evidence. According to counsel, he strongly argued with defendant regarding each of these decisions but finally grew to appreciate and concur with his client’s point of view.
Counsel realized that some mitigating evidence could have been presented in the form of testimony from defendant’s family regarding the “good things” in defendant’s life. “But,” as counsel noted, “Ronnie says that is his life, his past life, his personal life; and to him, it cheapens all of his relationships if he brings those [persons] in now to make a plea for mercy, *371where, in his heart, he knows that he does not deserve mercy, [f] It boils down to, I think, the simple question of just what is a man’s dignity worth. Does a man in Ronnie Deere’s position, having done what he did—does he have any human dignity left at all? And he has convinced me that had he fought for his life, got down on his belly and crawled, virtually, like a snake to plead for leniency and mercy, that would be losing the last vestige of dignity he has. [1] What can he say to the family, or what’s left of the family of his victims? He virtually wiped out a family, a father and two small children .... The only thing he can do is say, T accept full responsibility for what I did. I demand just punishment,’ and just punishment is a penalty of death, to him .... [f] I know that this case will be reviewed in scrutiny by appellate lawyers and by appellate courts. As to what decisions may be made at some future time I’m certainly not in a position to comment on. But each decision I made has been in close consultation with Ronnie. It has been based on his desires and my conclusion that I have no right whatsoever to infringe upon his decisions about his own life .... [1] And his decisions are not suicidal, crazy decisions. They are rational, intelligent decisions by a man who realizes what he has done and says, ‘ This is the only position I can take to show you that I am still a man and not an animal."’ (Italics added.)
Defense counsel did not affirmatively advocate the death penalty for his client. Indeed, he argued to the court that the record supported only a penalty of life without possibility of parole because the aggravating circumstances failed to outweigh the mitigating ones. Thereafter, counsel moved the court to modify its penalty decision, arguing at length defendant’s mental and emotional distress during the offenses and the relatively painless method of executing his victims.
I do not believe that trial counsel is incompetent in failing to parade the defendant’s friends or relatives before the court or jury in an attempt to create sympathy for him. To hold that a competent defendant has no right to make such a choice could seriously infringe upon his personal rights of privacy and dignity. At the very least, the majority’s holding is unacceptably patronizing, requiring counsel to override his client’s reasoned and informed decision because defendant ultimately cannot be trusted to make sound choices about his own fate. In my view, such a holding comes close to violating the United States Supreme Court’s admonition that “forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself . . . .” (Faretta v. California (1975) 422 U.S. 806, 817 [45 L.Ed.2d 562, 572, 95 S.Ct. 2525].)
I believe that the state’s interest in assuring the reliability of death judgments can be adequately served by assuring the accuracy of the guilt and
*372penalty determinations without, in effect, requiring an unwilling defendant and his acquaintances to plead for mercy. Moreover, the majority fails to consider the strong possibility that counsel’s actions were indeed motivated by a sound tactical decision to present defendant as a person, replete with remorse and a sincere desire to atone for his terrible crimes. Counsel may well have believed that by presenting defendant in that light, the sentencing court would be more inclined to exercise mercy than if defendant and his family openly begged for it.
I also observe that defendant has not filed a habeas corpus petition specifying precisely what mitigating evidence was available to trial counsel, as required by us in People v. Jackson (1980) 28 Cal.3d 264, 293-296 [168 Cal.Rptr. 603, 618 P.2d 149]. How can we find counsel incompetent for failing to introduce mitigating evidence in the absence of any proof that such evidence was available? Does the majority intend to overrule Jackson sub silentio?
I would affirm the judgment in its entirety.
Respondent’s petition for a rehearing was denied February 14, 1986. Lucas, J., and Panelli, J., were of the opinion that the petition should be granted.